Appeal by defendant from judgment entered 15 January 2003 by
Judge W. Russell Duke, Jr. in Pasquotank County Superior Court.
Heard in the Court of Appeals 1 November 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas J. Ziko, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and
Kirby H. Smith, III, for defendant-appellant.
GEER, Judge.
Defendant Danny Boyd appeals from his convictions for
possession of cocaine with intent to manufacture, sell, or deliver;
trafficking in cocaine; and maintaining a dwelling for the purpose
of keeping or selling cocaine. We uphold his convictions for
possession and trafficking. With respect to his conviction on the
maintaining a dwelling charge, however, we hold that the trial
court erred when it allowed a police officer to testify that, prior
to being Mirandized, defendant had incriminated himself by giving
his home address in response to a routine booking question.
Defendant is, therefore, entitled to a new trial on that charge.
In addition, as the State concedes, defendant is entitled to a new
sentencing hearing on the conviction of possession of cocaine
because the trial court erroneously found as an aggravating factor
that defendant had joined with more than one other person in
committing his crimes.
Factual and Procedural History
The State's evidence tended to show the following facts. In
late 2001, the Pasquotank County Sheriff's Office launched an
investigation into a residence located at 809 Wilson Street in
Elizabeth City. During a two-month surveillance of the residence,
police officers observed a steady stream of "individuals coming to
the residence and staying only a few minutes then leaving. They
were on foot and also coming up in vehicles." On 18 January 2002,the police, using a confidential informant, completed a controlled
purchase of crack cocaine from defendant at the Wilson Street
residence. That same day, based on (1) the evidence from the
confidential informant, (2) the officers' surveillance of the
residence, and (3) information and complaints from citizens during
the course of the investigation, police officers obtained a search
warrant authorizing them to search both defendant and the Wilson
Street residence.
As soon as they had obtained the warrant, several police
officers knocked on the door of 809 Wilson Street and announced
loudly that they were with the Sheriff's Department and they had a
search warrant. When no one answered, they used a sledgehammer to
break down the door. As officers entered the house, they found
defendant lying on a sofa, stuffing plastic bags into his mouth.
Defendant initially resisted arrest, but after he was subdued,
officers observed a white chalky substance around his mouth
consistent with wet cocaine.
Shortly thereafter, Lisa Robinson, defendant's girlfriend,
appeared at the house. Officers intercepted her outside, detained
her, handcuffed her, and brought her inside, where she was shown a
copy of the search warrant. Witnesses described her as "extremely
upset," "shaking," and "extremely excited." As soon as she saw
defendant, she said, "[W]e gots to be more careful" and started to
cry.
As police searched the residence, they found defendant's
12-year-old son in the kitchen and three young girls in one of thebedrooms. In a second bedroom, containing a single bed and
children's and men's clothes, officers located 27 clear plastic
bags containing various amounts of cocaine. The bags were
concealed behind blinds in the space between an interior window and
an exterior storm window. All told, the cocaine in the bags added
up to approximately 280_300 grams, with a street value of
approximately $28,000.00 to $30,000.00. In a third bedroom,
containing a double bed, officers found an unloaded .12 gauge
shotgun hidden in a closet behind female clothing. Officers also
recovered a phone bill addressed to Lisa Robinson at the Wilson
Street residence, as well as a box containing a handheld scanner
and a receipt for the scanner from Advance Auto Parts. The receipt
bore defendant's name and the Wilson Street address.
The police took defendant and Ms. Robinson to the police
station, where they were each charged with (1) trafficking in
cocaine; (2) possession of cocaine with intent to manufacture,
sell, or deliver; and (3) maintaining a dwelling for the purpose of
keeping or selling cocaine. Defendant was booked by Officer
McKecuen, the same police officer who had arrested him. Prior to
advising defendant of his
Miranda rights, Officer McKecuen asked
defendant a number of routine booking questions, including his
name, age, date of birth, next of kin, and home address. In
response to the inquiry about his address, defendant responded that
he lived at 809 Wilson Street.
Immediately after booking, defendant was read his
Miranda
rights, and he agreed to talk to the police without exercising hisright to have an attorney present. When defendant was asked
whether the cocaine found in the 809 Wilson Street residence
belonged to him or Ms. Robinson, defendant responded: "It's mine."
When he was asked to memorialize this admission in writing,
defendant wrote "it's mine" on a piece of paper, but refused to
sign the paper.
Defendant was later indicted for one count of trafficking in
cocaine; one count of possession of cocaine with intent to
manufacture, sell, or deliver; and one count of maintaining a
dwelling for the purpose of keeping or selling cocaine. A jury
convicted him of all three charges on 15 January 2003. At
sentencing, the trial court imposed a presumptive range sentence of
70 to 84 months on the trafficking charge. With respect to the
charges of possession of cocaine with intent to manufacture, sell,
or deliver and maintaining a dwelling for the purpose of keeping
or selling cocaine, the trial judge sentenced defendant in the
aggravated range to consecutive terms of 10 to 12 months and 8 to
10 months respectively. As an aggravating factor for each offense,
the judge found that defendant had "joined with more than one other
person in committing the offense and was not charged with
committing a conspiracy." Although defendant did not give timely
notice of appeal, this case comes before us pursuant to our grant
of certiorari on 5 November 2003.
Defendant's Motion to Suppress
[1] Defendant first assigns error to the trial court's denial
of his motion to suppress the evidence seized from the WilsonStreet residence, arguing that the search warrant was invalid
because of false statements contained in the affidavit submitted
in support of the request for a warrant. With respect to an
affidavit supporting a search warrant, if a defendant shows that
"(1) the affiant knowingly or with reckless disregard for the truth
made false statements; and (2) the false statements are necessary
to the finding of probable cause, then 'the warrant is rendered
void, and evidence obtained thereby is inadmissible . . . .'"
State v. Rashidi, 172 N.C. App. 628, 633, (2005) 617 S.E.2d 68, 72
(quoting
State v. Fernandez, 346 N.C. 1, 13, 484 S.E.2d 350, 358
(1997)),
aff'd per curiam, 360 N.C. 166, 622 S.E.2d 493 (2005).
Here, defendant argues that the affidavit falsely stated that
(1) the police received complaints about criminal activity by
defendant, when in fact the complaints pertained more generally to
the Wilson Street residence; (2) defendant had been served with
criminal papers at the Wilson Street address, when actually he had
been served with civil papers; and (3) by means of a hidden
transmitter, the affiants were able to overhear a conversation
between defendant and the confidential informant at the time of the
controlled buy, when in fact the transmitter did not pick up any
voices except for the informant's. We need not decide whether
defendant sufficiently established that these were knowing or
reckless falsehoods because even if those assertions are omitted,
the affidavit is still sufficient to support a finding of probable
cause.
See Rashidi, 172 N.C. App. at 634, 617 S.E.2d at 73
(holding that when the affidavit was considered without theallegedly false statements, it still indicated the presence of
probable cause; therefore, it was unnecessary to reach the issue
whether the false statements were made knowingly or recklessly).
North Carolina uses a "totality of the circumstances" test to
assess whether probable cause exists for the issuance of a search
warrant.
State v. Arrington, 311 N.C. 633, 643, 319 S.E.2d 254,
260_61 (1984). Generally, an affidavit supporting a search warrant
is sufficient [to establish probable cause] if
it supplies reasonable cause to believe that
the proposed search for evidence probably will
reveal the presence upon the described
premises of the items sought and that those
items will aid in the apprehension or
conviction of the offender. . . . The facts
set forth in an affidavit for a search warrant
must be such that a reasonably discreet and
prudent person would rely upon them before
they will be held to provide probable cause
justifying the issuance of a search warrant.
Id. at 636, 319 S.E.2d at 256 (internal citations omitted).
In the present case, the unchallenged statements in the
affidavit show that 20 different sources contacted police over a
six-month period to complain about criminal activity occurring in
the Wilson Street residence; two months' surveillance of the
residence revealed substantial coming and going by individuals who
stayed at the house only for very short periods of time; a
confidential informant submitted to a full search by officers, made
a controlled buy of cocaine at 809 Wilson Street, and returned with
cocaine that he promptly gave to the police; and the confidential
informant identified defendant as the individual who had sold him
the cocaine. Taken as a whole, this information, set forth in the
challenged affidavit, is sufficient to support the conclusion thatprobable cause existed to search defendant and the Wilson Street
residence.
While the unusual traffic at the residence was not sufficient,
by itself, to constitute probable cause, the additional evidence
regarding the controlled buy by an informant under surveillance of
the officers was sufficient to support issuance of the search
warrant.
See State v. Collins, 56 N.C. App. 352, 355, 289 S.E.2d
37, 39 (1982) (probable cause to search existed when officer
watched informant enter house and return several minutes later with
LSD that he gave to officer);
State v. McLeod, 36 N.C. App. 469,
472, 244 S.E.2d 716, 719 (probable cause to search existed when
officer watched informant enter building and return with marijuana
that he gave to officer),
cert. denied, 295 N.C. 555, 248 S.E.2d
733 (1978). Contrary to defendant's argument, it was unnecessary,
under these facts, for the State to make any showing addressing the
credibility and reliability of the informant.
Collins, 56 N.C.
App. at 355-56, 289 S.E.2d at 40 (holding that the affidavit
describing a controlled buy was not required to contain facts
establishing that the informant was credible or his information
reliable). Defendant's first assignment of error is, therefore,
overruled.
(See footnote 1)
Hearsay
[2] Defendant next argues that the trial court improperly
admitted, over his objection, Ms. Robinson's statement to
defendant: "[W]e gots to be more careful." Defendant contends that
Ms. Robinson's statement was hearsay and, therefore, inadmissible
under N.C.R. Evid. 802. We hold that the statement was properly
admitted under N.C.R. Evid. 803(2), the excited utterance exception
to the hearsay rule.
Rule 803 states: "The following are not excluded by the
hearsay rule, even though the declarant is available as a witness:
. . . (2) Excited Utterance. _ A statement relating to a startling
event or condition made while the declarant was under the stress of
excitement caused by the event or condition." The reason for
allowing the excited utterance exception is that "circumstances may
produce a condition of excitement which temporarily stills the
capacity of reflection and produces spontaneous and sincere
utterances."
State v. Reid, 335 N.C. 647, 662, 440 S.E.2d 776, 784
(1994) (internal quotation marks omitted).
Ms. Robinson's statement, given the circumstances under which
it was made, fits within the excited utterance exception. She made
her exclamation in reaction to the startling event of arriving home
late in the evening, being seized in the front yard, and being led
handcuffed into her own residence. An eyewitness testified that
when she made the statement, she was upset and shaking, and
immediately after making it, she burst into tears. These
circumstances qualify the statement for admission as an excitedutterance.
See State v. Beaver, 317 N.C. 643, 650, 346 S.E.2d 476,
480_81 (1986) (admitting as an excited utterance a statement by
defendant's mother _ as the police brought defendant into his
mother's house and told her he had been arrested for manufacturing
marijuana _ that "I told you you'd get caught. I told you not to
mess with that stuff.");
State v. Guice, 141 N.C. App. 177, 201,
541 S.E.2d 474, 489 (2000) (victim's statements properly considered
to be excited utterances because they were made shortly after
police found her, when she was crying and terrified),
appeal
dismissed, disc. review denied in part, and disc. review allowed in
part on other grounds, 353 N.C. 731, 551 S.E.2d 112-13 (2001),
modified upon remand on other grounds, 151 N.C. App. 293, 564
S.E.2d 925 (2002). Defendant's second assignment of error is,
therefore, overruled.
Admissibility of Shotgun
[3] Defendant next argues that the trial court should have
excluded from evidence as irrelevant the shotgun found in the
closet of the third bedroom. "'Relevant evidence' means evidence
having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence." N.C.R. Evid.
401.
In this case, the presence of a gun was relevant to the
possession and trafficking charges.
See State v. Smith, 99 N.C.
App. 67, 72, 392 S.E.2d 642, 645 (1990) (holding that trial court
could properly determine that evidence of a gun was relevant to thecharge of possession with intent to sell or deliver cocaine because
"[a]s a practical matter, firearms are frequently involved for
protection in the illegal drug trade"),
cert. denied, 328 N.C. 96,
402 S.E.2d 824 (1991);
see also State v. Willis, 125 N.C. App. 537,
543, 481 S.E.2d 407, 411 (1997) (relying upon the "common-sense
association of drugs and guns"). Further, a jury could conclude
that the shotgun was consistent with maintaining a dwelling for the
purpose of keeping or selling cocaine, especially given the street
value of the drugs found. While defendant argues that the evidence
suggested the gun belonged to Ms. Robinson, the State also offered
evidence suggesting that defendant was residing at the house with
his son and was a full participant in the trafficking and
possession of the cocaine.
As to defendant's argument that the gun was erroneously
admitted because it was overly prejudicial in relation to its
probative value under N.C.R. Evid. 403, "the determination of
whether relevant evidence should be excluded [under Rule 403] is a
matter left to the sound discretion of the trial court, and the
trial court can be reversed only upon a showing of abuse of
discretion."
State v. Wallace, 351 N.C. 481, 523, 528 S.E.2d 326,
352-53,
cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498, 121 S. Ct.
581 (2000). Since defendant has failed to specifically demonstrate
how he was unfairly prejudiced beyond the inferences the jury was
properly entitled to draw from the presence of the gun in the
closet, we hold that the trial court did not abuse its discretionin holding that the gun's probative value was not unfairly
outweighed by its prejudicial effect.
Routine Booking Question
[4] Defendant next argues that the trial court erred by
allowing, over defendant's objections, testimony that defendant, in
response to a pre-
Miranda routine booking question at the police
station, told officers that 809 Wilson Street was his home address.
Although courts across the United States have adopted various
approaches in addressing routine booking questions in light of
Miranda,
see Meghan S. Skelton & James G. Connell, III,
The Routine
Booking Question Exception to Miranda, 34 U. Balt. L. Rev. 55,
78_94 (2004), the issue has been decided in this State by our
Supreme Court's opinion in
State v. Golphin, 352 N.C. 364, 409_10,
533 S.E.2d 168, 201 (2000),
cert. denied, 532 U.S. 931, 149 L. Ed.
2d 305, 121 S. Ct. 1379 (2001). In
Golphin, the Court wrote:
[T]here is a limited exception to
Miranda for
routine questions asked during the booking
process. . . . In an effort not to infringe
upon an accused's constitutional rights,
however, the exception is limited to
routine
informational questions necessary to complete
the booking process that are
not reasonably
likely to elicit an incriminating response
from the accused.
Id. at 406_07, 533 S.E.2d at 199_200 (internal citations and
quotation marks omitted).
Golphin establishes that the key inquiry regarding the
admissibility of a defendant's answer to a routine booking question
is whether the question was "'reasonably likely to elicit an
incriminating response from the accused.'"
Id. at 407, 533 S.E.2dat 200 (quoting
State v. Ladd, 308 N.C. 272, 287, 302 S.E.2d 164,
173 (1983)). In this case, the State has conceded on appeal that
"there is no doubt on the facts in this case that defendant's
admission that he lived at 809 Wilson Street was the product of an
[sic] custodial interrogation which Officer McKecuen fully expected
to produce an incriminating response." Pointing to Officer
McKecuen's affidavit in support of the request for a search
warrant, the State further acknowledges that "the evidence proves
that Office McKecuen fully expected that in response to that
[booking] question defendant would make the incriminating statement
that he lived at 809 Wilson Street." Indeed, the State does not
dispute that the question was reasonably likely to elicit an
incriminating response. Instead, the State asks that we adopt a
different rule than the one set forth in
Golphin. We are bound by
Golphin and, given
Golphin and the undisputed record, we are
compelled to hold that the question posed to defendant in this case
does not fall within the routine booking question exception to
Miranda. Because the answer was obtained in violation of
Miranda,
it was not admissible.
See Miranda v. Arizona, 384 U.S. 436, 494,
16 L. Ed. 2d 694, 735, 86 S. Ct. 1602, 1638 (1966) (holding that
fruits of custodial interrogation conducted without proper warnings
were inadmissible).
"A violation of the defendant's rights under the Constitution
of the United States is prejudicial unless the appellate court
finds that it was harmless beyond a reasonable doubt. The burden
is upon the State to demonstrate, beyond a reasonable doubt, thatthe error was harmless." N.C. Gen. Stat. § 15A_1443(b) (2005). We
hold that the State has not met this burden. If we consider the
State's evidence pertaining to the Wilson Street residence,
omitting defendant's incriminating response to the booking
question, it is apparent that this evidence is insufficient to
support a conviction for maintaining a dwelling for the purpose of
keeping or selling cocaine.
N.C. Gen. Stat. § 90_108(a)(7) (2005) prohibits any person
from:
knowingly keep[ing] or maintain[ing] any
store, shop, warehouse, dwelling house,
building, vehicle, boat, aircraft, or any
place whatever, which is resorted to by
persons using controlled substances in
violation of this Article for the purpose of
using such substances, or which is used for
the keeping or selling of the same in
violation of this Article.
A pivotal factor is whether there is evidence that defendant owned,
leased, maintained, or was otherwise responsible for the premises.
See State v. Harris, 157 N.C. App. 647, 652, 580 S.E.2d 63, 67
(2003) (evidence insufficient to support maintaining a dwelling
charge when defendant was seen at the house several times over a
period of two months, an officer had spoken to defendant there
twice during that time, and personal property of defendant was
found in bedroom, but there was "no evidence that defendant owned
the property, bore any expense of renting or maintaining the
property, or took any other responsibility for the property");
State v. Hamilton, 145 N.C. App. 152, 154, 549 S.E.2d 233, 234-35
(2001) (evidence insufficient to support maintaining a dwellingcharge when sole evidence tying defendant to address was a traffic
citation with defendant's name on it, listing his address as the
address in question);
State v. Bowens, 140 N.C. App. 217, 221-22,
535 S.E.2d 870, 873 (2000) (evidence that defendant had been seen
frequenting a residence and that a closet in the residence
contained men's clothing was insufficient to support charge of
maintaining a dwelling when no evidence indicated that defendant's
name was on lease or utility bills, or that he was in any way
responsible for dwelling's upkeep),
disc. review denied, 353 N.C.
383, 547 S.E.2d 417 (2001).
Here, there was no evidence that defendant had any
responsibility for the premises. While a jury could find that he
lived there, the State offered no evidence that he participated in
the leasing of the house, the payment of the rent, or the
maintenance and upkeep of the premises. The only utility bill in
evidence was in Ms. Robinson's name. In sum, the only valid pieces
of evidence that tied defendant to the 809 Wilson Street residence
were (1) the receipt from Advance Auto Parts, (2) the civil summons
served upon defendant at that address, (3) the presence of male
clothing, and (4) the fact that defendant sold drugs to the
informant and remained at the residence until police executed the
search warrant soon after the controlled buy. This evidence is
materially indistinguishable from the evidence found insufficient
in
Harris,
Hamilton, and
Bowens.
Since in the absence of the answer to the booking question,
the evidence is insufficient to convict defendant of the charge ofmaintaining a dwelling for the purpose of keeping or selling
cocaine, we must reverse that conviction and order a new trial on
that charge. Defendant's response to the booking question was not,
however, necessary to support his convictions on the remaining
charges. Even when the challenged statement is omitted,
substantial evidence of defendant's guilt on those two charges
remains.
Defendant's Motion to Dismiss
[5] Defendant next argues that his motion to dismiss his three
charges for insufficiency of the evidence should have been granted.
Because we have ordered a new trial on the maintaining a dwelling
conviction, we address the motion to dismiss only insofar as it
relates to the possession and trafficking charges. Defendant's
sole argument on appeal as to these charges is that the State did
not present sufficient evidence that defendant had possession of
any cocaine.
In ruling on a defendant's motion to dismiss, the trial court
must determine whether the State has presented substantial evidence
(1) of each essential element of the offense and (2) of the
defendant's being the perpetrator.
State v. Robinson, 355 N.C.
320, 336, 561 S.E.2d 245, 255,
cert. denied, 537 U.S. 1006, 154 L.
Ed. 2d 404, 123 S. Ct. 488 (2002). "'Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'"
State v. Matias, 354 N.C. 549, 552, 556
S.E.2d 269, 270 (2001) (quoting
State v. Brown, 310 N.C. 563, 566,
313 S.E.2d 585, 587 (1984)). When considering a motion to dismiss,the trial court must view all of the evidence presented "in the
light most favorable to the State, giving the State the benefit of
every reasonable inference and resolving any contradictions in its
favor."
State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223
(1994),
cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct.
2565 (1995).
Possession of a controlled substance may be actual or
constructive.
State v. McLaurin, 320 N.C. 143, 146, 357 S.E.2d
636, 638 (1987). "A person has actual possession of a substance if
it is on his person, he is aware of its presence, and either by
himself or together with others he has the power and intent to
control its disposition or use."
State v. Reid, 151 N.C. App. 420,
428_29, 566 S.E.2d 186, 192 (2002). Constructive possession, on
the other hand, exists when the defendant, "'while not having
actual possession, . . . has the intent and capability to maintain
control and dominion over' the narcotics."
Matias, 354 N.C. at
552, 556 S.E.2d at 270 (quoting
Beaver, 317 N.C. at 648, 346 S.E.2d
at 480). When the defendant does not have exclusive possession of
the location where the drugs were found, the State must make a
showing of "other incriminating circumstances" in order to
establish constructive possession.
Id., 556 S.E.2d at 271.
In this case, the State's evidence indicated that defendant
admitted the drugs were his. There was also evidence of
defendant's constructive possession of the drugs. A large amount
of individually packaged cocaine was found in a room adjacent to
the room where defendant was apprehended. The State offeredevidence that would permit a reasonable juror to find that
defendant lived at that house, which was rented by his girlfriend,
including defendant's receipt of a civil summons at that address,
the presence of his 12-year-old son and adult male clothing at the
house, and a receipt listing his name and the Wilson Street
address. This evidence is sufficient to support a finding of non-
exclusive possession of the premises by defendant, even though the
evidence does not establish that defendant was maintaining the
dwelling. Further, the State offered evidence of incriminating
circumstances, including testimony that defendant did not respond
to the police's knock at the door, he was caught swallowing small
plastic bags similar to the ones found to contain cocaine, he had
a white substance around his mouth as he was being arrested,
and
defendant possessed a handheld "Uniden Bear Cat 20 channel, 10 band
scanner." Finally, we have Ms. Robinson's statement that the two
of them needed to be more careful.
This evidence, when viewed in the light most favorable to the
State, constitutes substantial evidence of constructive possession
by defendant of the cocaine.
See State v. Battle, 167 N.C. App.
730, 733, 606 S.E.2d 418, 420 (2005) (holding evidence was
sufficient to show defendant was in constructive possession of
cocaine found in motel room, where defendant was in motel room
registered to another when police officers conducted search, room
contained a number of defendant's personal effects, including
personal papers, and defendant's vehicle was parked in motel lot);
State v. Autry, 101 N.C. App. 245, 252, 399 S.E.2d 357, 362 (1991)(evidence sufficient to show constructive possession when defendant
was standing next to kitchen table whose contents included cocaine,
cash, jacket, and pistol, and defendant admitted to ownership of
jacket and cash). Defendant's arguments as to his motion to
dismiss are, therefore, without merit, and this assignment of error
is overruled.
Sentencing
Defendant's final argument addresses the trial court's
imposition of an aggravated range sentence with respect to the
possession charge and maintaining a dwelling charge. The trial
court found as an aggravating factor that the defendant "joined
with more than one other person in committing the offense and was
not charged with committing a conspiracy." The State concedes on
appeal that the trial court erred with respect to the two
aggravated sentences since the record contains no evidence that any
third person joined with defendant and Ms. Robinson in committing
the crimes.
In addition to a new trial on the maintaining a dwelling
charge, defendant is, therefore, also entitled to a new sentencing
hearing with respect to his conviction for possession of cocaine
with intent to manufacture, sell, or deliver.
See State v.
Morston, 336 N.C. 381, 411, 445 S.E.2d 1, 18 (1994) (remanding for
re-sentencing when the State conceded an error in defendant's
initial sentence);
State v. Scercy, 159 N.C. App. 344, 354, 583
S.E.2d 339, 345 (same),
appeal dismissed and disc. review denied,357 N.C. 581, 589 S.E.2d 363 (2003).
(See footnote 2)
Defendant's sentence with
respect to his trafficking charge was in the presumptive range, and
accordingly we leave that sentence undisturbed.
No error in part, new trial in part, and remanded for re-
sentencing in part.
Judges WYNN and McGEE concur.
Footnote: 1